Bermes v. Summit County

August 24, 2023

Utah Court of Appeals

2023 UT App 94 (click for full text of opinion)

The Utah Court of Appeals upheld the County’s denial of a homeowner’s requested special exception to ridgeline disturbance limits to build an additional accessory building on the same lot as his residence. 

The county’s hillside stewardship zone, applicable to the property, provides a site grading provision that states that “[s]ite grading shall be minimized” and the “limit of disturbance area shall not exceed twenty thousand (20,000) square feet.”   

The homeowner previously obtained a variance to the disturbance limit to build a home with a 43,805-square-foot disturbance area. Thereafter, the county changed its process to create a procedure for a “Special Exception” to disturbance area limits according to certain approval criteria in the ordinance that would be reviewed and approved by the County Council. The homeowner subsequently requested permission to build an additional accessory building on the same lot, which would involve an additional 9,781-square-foot disturbance area. While the owner argued that the disturbance limit applied per project, and that he was therefore compliant with the limit, the County required him to obtain approval for a Special Exception on the basis that the limit applied cumulatively to a particular lot, and that the homeowner had already exceeded the limit with the prior construction of the home. 

A staff report was prepared regarding the application, and while the report discussed the relevant special exception criteria found in county ordinances, the “conclusions of law” section incorrectly referenced the zoning variance criteria instead. Following a public hearing and discussion of the application, the County denied the special exception request, but the written decision’s conclusions of law likewise referenced the variance standards instead of the special exception standards. On review, a district court reversed the decision as illegal, remanding back to the County Council with instructions to make findings and conclusions according to the special exception criteria. 

Following this decision, the homeowner sent a letter to the Council suggesting that further discussion was necessary, positing a new argument that the special exception criteria did not apply at all to the property, as the proposed accessory building did not require “site grading” as the term was defined in code. However, the County asserted that it had appropriately reviewed the proper criteria, and that all that was needed was to correct the citations in the written decision’s conclusions of law. The County issued a new written decision on much of the same analysis, but changed the conclusions of law to correspond with the special exception criteria. The homeowner petitioned the district court to review the new decision, arguing it was illegal because it lacked “substantive review” and that the site grading disturbance area limit was inapplicable because the proposed building did not require “site grading,” and that even if applicable, the decision was arbitrary and capricious because there was substantial evidence that he met all of the special exception criteria. The district court ruled that the decision was not arbitrary, capricious, or illegal, and the homeowner appealed.

The Utah Court of Appeals upheld the denial, holding that the site grading disturbance limits applied to the property. While “site grading” was not defined in county code, the Court concluded that the ordinary meaning of the term in a construction context referred to the leveling off of the ground underlying a structure, and that whereas the accessory building was to be on a steep slope requiring the need to level the ground, the project did require “site grading.”

The Court next found that the disturbance area limit was cumulative in nature. While the provision does not explicitly state either that the area is measured cumulatively, or per project, the Court concluded that interpreting the provision in harmony with other provisions as a whole act suggests that disturbance limits are measured in relation to lot size, as opposed to project size, and that the purpose of the ordinance is to minimize excess development, whereas the homeowner’s interpretation would facilitate excess development by allowing disturbances over the limit as long as the disturbances don’t occur within the same project, enabling the very thing that the provision was designed to prohibit. 

The Court held that the homeowners received proper substantive review in the amended decision as the record showed that the special exception criteria were all discussed in substance, and that it was simply the conclusions of law that incorrectly referred to the zoning variance criteria. 

Regarding the arbitrary and capricious standard, the homeowner argued that the amended decision was not specific enough to allow substantial evidence review, and that there wasn’t substantial evidence to support the Council’s conclusions. The Court rejected these arguments, finding that even if the conclusions were not set forth in much detail, they did not need to be, because the Council had also explained its rationale under the Findings of Fact heading, which included 36 separately numbered findings, and that any of the findings that the homeowner had failed to establish even one of the criteria for special exception amounted to substantial evidence supporting the decision to deny the special exception. The Court concluded then, that the Council’s decision was not arbitrary and capricious, or illegal.